Citation Nr: 1336548 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 07-31 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD) and asthma, to include as secondary to a service-connected disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran had active service from July 1969 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the Board in April 2009 and August 2011 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent and most probative evidence of record does not establish that the Veteran's current respiratory disorder is related to his service or to the service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that the RO's letters dated in September 2006 and November 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, 19 Vet. App. at 490. Moreover, even if the Veteran was not provided adequate notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the November 2011 letter followed by a readjudication of the claim in the June 2012 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). VA also has a duty to assist veterans with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and post service VA treatment records, as well as his personal statements. Pursuant to the Board's April 2009 remand, the Veteran was afforded a VA medical examination in September 2009 to determine the etiology of his current respiratory disorder. The September 2009 VA examination opinion stated that the Veteran's numerous years of smoking ultimately caused the Veteran's respiratory disorder. In light of this finding, the Veteran's raised a new argument that his respiratory disorder should be secondarily service-connected because his smoking was due to his service-connected posttraumatic disorder (PTSD). Therefore, in compliance with the Board's August 2011 remand, the RO obtained a November 2011 supplemental opinion addressing whether the Veteran's smoking was due to his PTSD. The Board finds that both the September 2009 and November 2011 VA examinations were adequate as the examiners reviewed the claims files and supported their opinions with rationale. Under these circumstances, the Board finds that there has been substantial compliance with its April 2009 and August 2011 remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Thus, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran seeks service connection for his respiratory disorder, to include as secondary to his service-connected PTSD. Specifically, he has alleged that the condition is secondary to his tobacco use and addiction as a result of his service-connected PTSD. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2013). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen, 7 Vet. App. at 488. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for a respiratory disorder. The Veteran has a current respiratory disorder as documented by his VA examination reports and treatment records. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). To that effect, VA treatment records dated from September 2003 through March 2012 show diagnoses of COPD. However, the Veteran's respiratory disorder first manifested many years after service and is not related to service. As a preliminary matter, although the Veteran reported a history of shortness of breath on the April 1969 report of medical history completed in conjunction with his service entrance examination, physical examination of the lungs and chest at that time was noted to be normal. A chest x-ray was negative. When determining whether a disability or disease was incurred in service, or preexisted service, a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111(West 2002); 38 C.F.R. § 3.304 (2013). As no defect was clinically identified on examination in April 1969, the record does not demonstrate the existence of a respiratory disorder prior to service. As such, his claim is for consideration on direct or secondary service connection bases. Service treatment records contain notations of complaints of chest wheezing in August and September 1970, tightness in his chest and a productive cough in October 1970, chest pain in January 1971 with an upper respiratory infection, a normal chest x-ray in April 1971, lung area congestion reaching to his bronchi in May 1971, and complaints of pain in the chest and side in June 1971. On his June 1971 separation examination, the Veteran reported pain or pressure in the chest; however, he denied asthma, shortness of breath or chronic cough, and no findings were listed. The clinical evaluation of the Veteran's chest and lungs was normal, and there was no indication of any respiratory pathology on his separation examination in June 1971. The chest x-ray was negative. Therefore, no chronic respiratory disorder was noted in service, providing some limited evidence against this claim. Indeed, the first medical evidence of record, reflecting treatment for the Veteran's current respiratory diagnosis was in September 2003, some 32 years after separation from service, at which time he was referred to the pulmonary consultation for evaluation of shortness of breath. It was noted that the Veteran presented to the emergency room two weeks previously for COPD exacerbation, which was the first time he had this diagnosis. The Veteran had no history of exposure to asbestos or silica, or cotton, although he related that he worked for one year in remodeling old buildings 10 years ago. It was further noted that he smoked half a pack of cigarettes for 40 years and was still smoking. The assessment was severe COPD. The pulmonary function tests (PFTs) revealed severe obstructive ventilator defect, which was improved with bronchodilators. Subsequent VA treatment records reflect continuing treatments for severe COPD and tobacco use disorder. Significantly, the opinion of the VA examiner in September 2009, who reviewed the Veteran's claims file, concluded that the Veteran's current respiratory disorder was not related to military service. At the September 2009 VA respiratory examination, the Veteran reported a history of smoking that started at age 17, which was about two years before he entered military service. He stated that he continued to smoke until he peaked at about two packs per day and finally quit in 2006. He related that he started developing shortness of breath in about 2003 although he complained that he did have episodes of shortness of breath soon after separation from service in 1971, until 2003 when he first sought medical treatment. The examiner noted that the Veteran had a history of serving in Vietnam for a period of 1 year where he was exposed to Agent Orange and various environmental dust and other chemicals in that setting. It was further noted that the Veteran had started smoking just before going into the service and smoked for about 25 years at the rate of about 2 packs per day. He developed severe obstructive airway disease as proven by PFTs. The examiner opined that the Veteran's obstructive pulmonary disease was most likely related to his longstanding smoking, although the contribution of his exposure to the chemicals in Vietnam could not be excluded; however, on a relative scale of probability, it was more likely that his COPD was caused by smoking and less likely that it was caused by exposure to Agent Orange or any chemicals in Vietnam. With respect to tobacco-related disabilities, for claims filed after June 9, 1998, which is the case here, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. § 1103(a). Thus, while the Veteran has alleged that his tobacco use is a habit he picked up prior to service and which eventually caused his respiratory disorder, service connection for tobacco use and respiratory disorder as due to tobacco use is prohibited under 38 U.S.C.A. § 1103(a). Nevertheless, service connection for a tobacco-related disability alleged to be secondary to a disability not service-connected on the basis of being attributable to a veteran's use of tobacco products during service may be warranted if the following criteria are met: (1) the service-connected disability caused a veteran to use tobacco products after service; (2) if so, the use of tobacco products as a result of the service- connected disability was a substantial factor in causing a secondary disability; and (3) the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. VAOPGCPREC 6-2003. For example, a veteran service connected for a mental disorder which results in a nicotine dependence may establish service connection for disease or disability attributable to the effects of secondarily service-connected nicotine dependence. Regarding the relationship between the Veteran's tobacco use and his service-connected PTSD, a VA examination was conducted to explore possible links between the tobacco use and PTSD in November 2011. The examiner reviewed the claims file. At the November 2011 VA examination, the Veteran reported that he began using cigarettes prior to going to Vietnam. The examiner noted that this demonstrated the Veteran had an interest in the use of tobacco prior to experiencing combat traumas associated with his PTSD. The Veteran further reported that the military culture while in Vietnam encouraged his increased use of cigarettes and other substances such as alcohol; he did not report increased cigarette use as directly related to traumatic events that occurred while serving in Vietnam. He acknowledged that after returning from Vietnam, he continued to lead a lifestyle in which he and his fellow coworkers and buddies engaged in use of alcohol and other substances, including cigarettes, excessively; he stated this lifestyle was accepted and in some ways encouraged not only in the military, but in his workplace for many years post service. The Veteran reported that he smoked because it went along with the drinking activities, in which he and his buddies or coworkers were actively engaged, prior to, during, and after his service. The examiner added that there was no evidence in the literature to date that demonstrates a causal relationship between PTSD and the use of nicotine. No other treatment records address the relationship between PTSD and the Veteran's respiratory disorder, and the Veteran did not provide research or a rationale supporting his allegation of a relationship between the disorders. As such, there is no competent medical evidence suggesting that the Veteran's use of tobacco products was the result of his service-connected PTSD. The Veteran is certainly competent to testify as to symptoms that are non-medical in nature, such as episodes of shortness of breath shortly after service; however, he is not competent to render a medical opinion as to whether such symptoms are caused by service or service-connected PTSD. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). The Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating his current respiratory disorder to his service or to service-connected PTSD, the Board finds that the etiology of the Veteran's respiratory disorder is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. Hence, the Veteran's statements offered in support of the claim do not constitute competent evidence and are also lacking in probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Furthermore, as discussed above, the competent and most probative opinion of record does not relate the Veteran's current respiratory disorder to his active service or service-connected PTSD. The September 2009 and November 2011 VA examiners' opinions and rationale are entitled to more weight than the Veteran's unsupported lay assertion of a relationship between his service and respiratory disorder, or his service-connected PTSD and tobacco use. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Further, by the Veteran's own admission he began using tobacco products prior to and during service, at 18 years of age, not after service. The facts do not support the finding that it was his service-connected PTSD that triggered the use of tobacco products. In summary, the competent and probative evidence does not show that a respiratory disorder had onset during or as a result of service, was caused or aggravated by a service-connected disorder, and actually provides evidence against this claim. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claim for service connection for a respiratory disorder on a direct or secondary basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory disorder is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs